KELLEY v. SOUTHERN PACIFIC CO.
No. 73-1270
Supreme Court of the United States
Argued October 22, 1974—Decided December 23, 1974
419 U.S. 318
R. Jay Engel argued the cause and filed briefs for petitioner.
John J. Corrigan argued the cause for respondent. With him on the brief was Donald O. Roy.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
Petitioner Eugene Kelley was seriously injured when he fell from the top of a tri-level railroad car where he had been working. He sought recovery for his injuries from the respondent railroad under the Federal Employers’ Liability Act (FELA),
I
At the time of his accident, petitioner had worked for the Pacific Motor Trucking Co. (PMT), a wholly owned subsidiary of the Southern Pacific Co., for about eight years.2 PMT was engaged in various trucking enterprises, primarily in conjunction with the railroad operations of its parent company. Among PMT‘s functions was transporting new automobiles from respondent‘s San Francisco railyard to automobile dealers in the San Francisco area. As part of its contractual arrangement with
On July 3, 1963, petitioner was unhooking automobiles in the usual fashion from the top level of one of the tri-level flatcars. A safety cable, normally affixed to the flatcar to protect against falls, was apparently not in place because of an equipment defect. During the unhooking process, petitioner fell from the top of the car and suffered a disabling injury. He subsequently received workmen‘s compensation payments from PMT. Shortly before the three-year FELA statute of limitations had run, he brought suit against the respondent,3 claiming it had been negligent in failing to maintain the safety cable in its proper plаce and in proper working order.
In his complaint, petitioner alleged that he was employed by the respondent railroad within the meaning of the FELA. After a six-day hearing, the District Court, sitting as trier of fact,4 ruled in petitioner‘s favor on the employment question. The job of unloading
The Court of Appeals observed that the District Court had not found that petitioner was “employed” by the railroad, either permanently or at the time of his accident. The court noted that the “while employed” clause of the FELA requires a finding not just of agency but of a master-servant relationship between the rail carrier and the FELA plaintiff. Concluding that the District Court had applied an unduly broad test for FELA liability, the Court of Appeals reversed the District Court‘s judgment.
II
Petitioner insists that the District Court in effect made a factual finding of employment and that the Court of Appeals erred in upsetting that finding. Of course, even
The heart of the District Court‘s analysis was its conclusion that the “traditional agency relationship” between respondent and PMT, in conjunction with the master-servant relationship between PMT and petitioner, was sufficient under the circumstances of this case to bring petitioner under the coverage of the Act. But this Court has repeatedly required more than that to satisfy the “while employed” clause of the FELA. From the beginning the standard has been proof of a master-servant relationship between the plaintiff and the defendant railroad. See Robinson v. Baltimore & Ohio R. Co., 237 U. S. 84, 94 (1915); Hull v. Philadelphia & Reading R. Co., 252 U. S. 475, 479 (1920); Baker v. Texas & Pacific R. Co., 359 U. S. 227, 228 (1959).
In an early FELA case, this Court noted that the words “employee” and “employed” in the statute were used in their natural sense, and were “intended to describe the conventional relation of employer and employé.” Robinson, supra, at 94. In Baker, supra, the Court reaffirmed that for the purposes of the FELA the question of employment, or master-servant status, was to be determined by reference to common-law principles. The
Under common-law principles, there are basically three methods by which a plaintiff can establish his “employment” with a rail carrier for FELA purposes even while he is nominally employed by another. First, the employee could be serving as the borrowed servant of the railroad at the time of his injury. See Restatement (Second) of Agency § 227; Linstead v. Chesapeake & Ohio R. Co., 276 U. S. 28 (1928). Second, he could be deemed to be acting for two masters simultaneously. See Restatement § 226; Williams v. Pennsylvania R. Co., 313 F. 2d 203, 209 (CA2 1963). Finally, he could be a subservant of a company that was in turn a servant of the railroad. See Restatement § 5 (2); Schroeder v. Pennsylvania R. Co., 397 F. 2d 452 (CA7 1968).
The District Court found that PMT employees exercised supervision and control over the unloading operations, although the railroad bore the “responsibility” for those functions. On these facts, the District Court was plainly correct in concluding that PMT was an agent of the railroad. But a finding of agency is not tantamount to a finding of a master-servant relationship. See Restatement (Second) of Agency § 2. The finding that the railroad was “responsible” for the unloading operations is significantly weaker than would be a finding that it controlled or had the right to control the physical conduct of the PMT employees in the course of their unloading operations. The railroad would satisfy the District Court‘s “responsibility” test whenever it agreed to perform a serv-
III
The dissenters argue that even if the District Court erred in defining the applicable legal standard, we should reverse the Court of Appeals and reinstate the judgment of the District Court. The facts found by the District Court, they contend, satisfied the requirements of the “while employed” clause, even under the proper test. We disagree.
As we noted in Part II, the District Court‘s findings concerning the contractual relationship between PMT and the railroad fall far short of compelling the conclusion that Kelley was employed by Southern Pacific. The court‘s other factual determinations add no more force to the claim. The findings that Kelley‘s crew worked most of the time on the railroad‘s premises and that railroad employees were responsible for checking safety conditions
The two companies were sufficiently distinct in organization and responsibility that there was no apparent overlap in the supervisory ranks. Indeed, the labor con-
In Robinson v. Baltimore & Ohio R. Co., supra, the petitioner was an employee of the Pullman Company, serving as porter in charge of a Pullman car that was hauled by the respondent railroad. Although the Pullman employees worked closely with railroad employees, and although the Pullman car was an integrаl part of the railroad operation, the Court held that that was not enough to make petitioner an employee of the railroad for the purposes of the Act. Even the petitioner‘s responsibility for taking tickets or fares of passengers boarding the Pullman car at night was not enough to make him a servant of the railroad. This service was merely an accommodation to the railroad, not a demonstration of the railroad‘s right to control the conduct of the Pullman employee. The Court stated that at the time the Act was passed, “[i]t was well known that there were on interstate trains persons engaged in various services for other masters. Congress, familiar with this situation, did not use any appropriate expression which could be taken to indicate a purpose to include such persons among those to whom the railroad company was to be liable under the Act.” 237 U. S., at 94. The Pullman company, like PMT in this case, selected its own employees, and it “defined their duties, fixed and paid their wages, directed and supervised the performance of their tasks, and placed and removed them at its pleasure.” Id., at 93.
In the following year, the Court was again faced with the question whether a particular worker was an employee of the railroad that had caused his death, or whether he
In Bond the Court relied on the earlier decision in Standard Oil Co. v. Anderson, 212 U. S. 215 (1909), to clarify the distinction between a contractor and an employee. In that case, a longshoreman was injured when a winch operator negligently lowered a load of oil cases on him. Petitioner, the general employer of the negligent winchman, argued that at the time of the accident the winchman was the borrowed servant of the stevedoring company, the longshoreman‘s employer. The Court, however, held that the winchman was not a servant of the stevedore but the servant of an independent contractor. The general employer had not furnished the еmployee to the stevedore, the Court wrote; it had furnished only the employee‘s work. Focusing on the locus of the power to control and direct the servant‘s work, the Court emphasized the importance of distinguishing between “authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking.” Id., at 222. Cf.
In this case, as in Anderson, the evidence of contacts between Southern Pacific employees and PMT employees may indicate, not direction or control, but rather the passing of information and the accommodation that is obviously required in a large and necessarily coordinated operation. See Del Vecchio v. Pennsylvania R. Co., 233 F. 2d 2, 5 (CA3 1956). The informal contacts between the two groups must assume a supervisory character before the PMT employees can be deemed pro hac vice employees of the railroad.10
“a supervisor, admittedly in the employ of the railroad, in the daily course of the work exercised directive control over the details of the job performed by the individual workmen, including the precise point where the mixture should be pumped, when they should move to the next point, and the consistency of the mixture.” 359 U. S., at 228-229.
Because the evidence of control or right to control was in serious dispute, the Court held that the case must be permitted to go to the jury. As we have indicated, however, the District Court found no such day-to-day supervision that would support a finding that petitioner and his cowоrkers were, in effect, employees of the railroad.
IV
We part company with the Court of Appeals on the propriety of a remand. The court rendered judgment for respondent apparently because it determined that the District Court had found that there was no employment relationship, or because it had decided on its own that any such finding would have been clearly erroneous. Yet, while the District Court‘s failure to adopt peti-
Vacated and remanded.
MR. JUSTICE STEWART, concurring in the judgment.
In determining Kelley‘s status under the FELA, the District Judge apparently relied on general agency principles, rather than on the particular principles of master-servant law. This was error, and it is thus proper to remand this case to the District Judge so that he can take a fresh look at the record, in light of the correct legal standard.
The correct standard is not a novel one. The law of master and servant has been with us for a long time, and its adequate exposition elsewhere, e. g., Restatement (Second) of Agency §§ 5 (2), 220, 226, and 227 renders much of the Court‘s extended discussion unnecessary. But my chief problem with the Court‘s opinion is its insistence upon dissecting the particularized evidence in this case. Whether or not the Southern Pacific Co. controlled or had the right to control Kelley‘s work is for the original factfinder to determine.
I believe that both the efficient allocation of judicial resources and the ends of justice are best served by a remand—but a genuine remand, affording the District Judge latitude to perform his proper function as fact-finder. Because the Court‘s opinion bristles with broad hints that a finding of FELA cоverage would be clearly erroneous, its remand of this case seems to me to approach disingenuousness.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN concurs, dissenting.
Today‘s decision marks a return to the era when the FELA was interpreted in a hostile and restrictive manner by the federal judiciary. Accordingly, I am constrained to register my dissent.
The first Employers’ Liability Act was enacted in 1906,
Since 1939 this Court has interpreted the Act in the spirit of those amendments. Gradual liberalization has occurred, and the narrow, technical approach of earlier years has been eschewed. See W. Prosser, Law of Torts 536-537 (4th ed. 1971). This development did not occur without dissent. Divisions of opinion occurred on the merits and also on the question of whether the Court should involve itself in this area at all. See, e. g., Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957). Nevertheless, the Court continued to oversee the application of the Act and to insist that judicial interpretations be consistent with the Act‘s overall purpose.
One of the questions which has arisen under the Act has been the definition of employment. Section 1 of the FELA,
In Baker v. Texas & Pacific R. Co., 359 U. S. 227 (1959), the petitioner‘s decedent had been hired as a workman by W. H. Nichols & Co., a firm which had entered into a contract with the respondent railroad. The decedent was working along the main line of the railroad performing various operations designed to strengthen and stabilize the roadbed. He was killed when he was struck by a train. The trial judge refused to submit the issue of employment to the jury and held that as a matter of
Ward v. Atlantic Coast Line R. Co., 362 U. S. 396 (1960), involved similar considerations to those in Baker. The petitioner was employed as a laborer by the railroad, but he was working on his day off with a crew which was fixing a siding track that belonged to a third party. Since the petitioner was being paid by this third party on the day of the injury, a question existed as to whether the petitioner was an employee of the railroad at the time of the accident. We held that the trial judge had improperly charged the jury to consider only one factor, that of the awareness of the victim that he was working for a third party on the day in question. We noted that a number of factors must be considered under Restatement (Second) of Agency § 220.
Many Courts of Appeals have bеen confronted with problems similar to those in Baker and Ward, and they too have taken a nontechnical approach based on the various aspects of the particular case presented. For example, in Missouri K-T R. Co. v. Hearson, 422 F. 2d 1037 (CA10 1970), the injured worker was a car cleaner. The railroad had stopped doing its own car cleaning and had hired a firm to do the job, and the injured worker was nominally the employee of this hired firm. But, upon examining all the factors, the Court of Appeals affirmed
The case most clearly in point from another Court of Appeals is Smith v. Norfolk & Western R. Co., supra. There the injured worker was also employed by a company which unloaded autos from railroad cars, and, like the petitioner here, the worker fell to the ground from the top tier of one of the cars. The District Court granted the worker summary judgment, since it had no doubt that he was an employee of the railroad within the meaning of the FELA. The Court of Appeals affirmed, using the following language: “Though employees of independent contractors are not accorded coverage under the Act... if the injured worker is employed by an agent or adjunct of the railroad he will be treated as an employee of the railrоad for purposes of the Act.... Thus traditional concepts of agency extend the coverage of the Act.” Id., at 502. The District Court in this case relied on the language of the Court of Appeals in Smith v. Norfolk & Western R. Co., supra. The Court today holds that this language misstates the law.
Because the District Court in the present case used the word “agent” rather than “servant” or “employеe” it committed a technical error. But our inquiry here should not be limited to a narrow examination of whether the right form of words was used to support a judgment in favor of a seriously injured worker. The District Court found that the requisite relationship was present to permit a recovery under the FELA, and we should ask whether the findings of fact that were made were sufficient to support that conclusion under the legal standard as correctly described.
The District Court made numerous findings of fact which support its conclusion that the FELA is applicable here, and these findings have not been held to be “clearly erroneous” under
There are basically two reasons for the Court of Appeals’ reversal of the District Court‘s holding in peti-
The second reason the Court of Appeals used for reversing the District Court was that the District Court had rejected a finding that petitioner was an employee of the railroad. The trial judge was relying on the “agency” lаnguage of Smith v. Norfolk & Western R. Co., supra, and he therefore apparently had his labels confused. He was using the concept of employment in a narrow and restricted way, yet was expanding it to accommodate decisions such as Baker by including both employment and agency relationships within the scope of the FELA. If the District Judge did not find an employment relationship in this narrow sense, that fact is unimportant, for he did find a relationship sufficient to satisfy the correct test. While he used language of agency he gave that language the substantive content
The majority here has taken a different tack from that of the Court of Appeals. Citing numerous cases from the era before the 1939 amendments to the Act, the majority argues that the railroad here exercised insufficient control over the petitioner to establish the requisite employment relationship. Under the approach taken in Baker and Ward, however, the existence of a master-servant relationship is to be determined from an examination of many factors. This is quite different from the majority‘s concentration on technical distinctions regarding kinds and degrees of control and cooperation.4 As I have indicated, I think that a judgment in favor of the petitioner is quite justified on the basis of facts already found by the District Court. I have no strong objection to the decision that the case be remandеd for new findings in light of the correctly stated legal standard, but I dissent from the rigid and old-fashioned standard of liability which the majority indicates should be made applicable.
In a strictly doctrinal sense this case may not have a great impact on the coverage of the FELA, but I fear
I would reverse the judgment below.
MR. JUSTICE BLACKMUN, dissenting.
The Court in its decided cases has traveled far in order to accord Federal Employers’ Liability Act coverage to a variety of employment situations. See, e. g., Shenker v. Baltimore & Ohio R. Co., 374 U. S. 1, 5 (1963), and North Carolina R. Co. v. Zachary, 232 U. S. 248, 260 (1914). Its many decisions are now a well-chalked slate that should not be significantly erased without good reasons. Neither should the Court change a mature and highly developed legal standard, long accepted by Congress, without explaining those reasons or even saying what the effect will be.
For me, the Court‘s per curiam opinion in Baker v. Texas & Pacific R. Co., 359 U. S. 227 (1959), controls this case. There the injured workman had been hired by a corporation engaged in work along the railroad‘s main-line right-of-way. The work consisted of pumping sand and cement into the roadbed in order to strengthen and stabilize it. The workman was struck by a train while engaged at this job. The petitioners contended that he was killed while he was “employed” by the railroad, within the meaning of the Act. Evidence on the question was introduced, but the trial judge declined to submit the issue to the jury, holding as a matter of law that the workman was not in such a relationship to the railroad at the time of his death as to entitle him to the Act‘s protection. The state courts refused to disturb the judgment for the railroad.
This Court, however, held that the Act does not use the terms “employee” and “employed” in any special
So it is here. Kelley was injured at the railroad‘s loading-and-unloading ramp in San Francisco. He and others were unchaining new automobiles for unloading when he fell from the third level of the railroad car. He was hired, paid by, and could be discharged by the railroad‘s wholly owned subsidiary. All the officers and directors of that subsidiary were officers or directors of the railroad. The subsidiary was the only company then having a contract with the railroad to unload cars at that ramp. Kelley had been employed at this particular job and at this site for eight years and was paid on an hourly basis. The unloading was the railroad‘s responsibility pursuant to its contractual obligation to its shipper. The railroad supplied the necessary working area. The work performed by Kelley was unskilled. Railroad employées had the responsibility dаily to check the safety of the cars and to make necessary repairs. There was evidence
All this, it seems to me, is enough to create an issue for the trier of fact, just as the Baker case illustrates and as it teaches. The trier could find that Kelley was doing work of a kind and in a way and under such supervision of the Southern Pacific as made him an employee of that railroad for purposes of the FELA.
I feel the Court, ante, at 325 n. 6, gives undue emphasis to the District Court‘s treatment of findings of fact proposed by the petitioner. Every actively practicing trial attorney knows that some judges readily adopt findings presented by counsel; that other judges almost always reject proposed findings and prefer tо draft their own or have their clerks prepare them; and that still others adopt a middle course. In this case the District Court produced a judgment for the injured workman. I doubt whether there can be much significance in the adjustment-of-proposed-findings route by which that judgment was reached.
While the Court disclaims any modification of the standards for allowing questions of fact in FELA cases to go to the jury, its decision here suggests otherwise. The Court implies that supervision must be “day-to-day” in order to constitute “supervision” for purposes of creating “employee” status under the FELA. Ante, at 331. Does this mean that orders must be issued with a certain frequency (e. g., every day, or most days) or merely in a certain manner (e. g., the “daily” normal “course of the work,” Baker, 359 U. S., at 228-229)? The
I also fear that the Court‘s holding may be one that opens the way for the railroads of this country to avoid FELA liability. That way apparently is to contract out large portions of maintenance and loading and unloading responsibilities that normally are part of the railroad‘s operation.
I would reverse the judgment of the Court of Appeals, and I therefore dissent.